Opinion
B163258.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. FABIAN CONTRERAS, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on October 23, 2003, be modified as follows:
1. On page 6, last line of the second paragraph before section II, the sentence "However, this does not resolve the issue in this case as the court erred in its section 186.22 instructions." is stricken. The following sentences are added:
"In Part II of this opinion we have found that the evidence was insufficient to support the alternative penalty provisions of section 186.22 subdivisions (b)(1) and (d). Therefore, imposition of the alternative penalty provisions as to count III must be stricken."
2. On page 11, fourth line of the third paragraph, "(d)" is changed to "(f)" so the sentence reads:
"Under the standard set in Apprendi v. New Jersey, supra, 530 U.S. 46, and interpreted in People v. Sengpadychith, supra, 26 Cal.4th 316, there was insufficient evidence to prove beyond a reasonable doubt the `primary activities element required by § 186.22 subdivision (f)."
[There is no change in judgment.]
The petition for rehearing is denied.